Food safety

In working with a United States fishing company that is looking to expand its operations in China, I came across a very thoughtful article on food safety in China’s fishing industry. The article is written by a respected publisher in the seafood industry, and someone I have known for years: John Sackton of Seafood.com. The article is entitled, NGO’s grapple with sustainability model in China and because I like its forest level view of China’s fishing industry and because I think what it says has applications to much of China’s food industry, I am putting it forth as a recommended read to anyone with an interest in the food industry.

A few months ago, I received an email asking me to detail the foods in the United States that either come from China or have Chinese ingredients. I very quickly responded that I knew it was many, but that I had absolutely no clue which ones. The reader then responded by saying that I was part of the problem???!!!

Chinese food is proliferating around the world and that means that Chinese food issues are and will be proliferating as well. A Wired Magazine article by Maryn McKenna, entitled, “Food Safety in China, and the Risk to the U.S.,” does a good job describing the issues, but like my email to the irate reader, does little to help us know which foods to avoid.

Many years ago, I used to think China’s quality issues were “an emerging market thing” and not “a China thing.” I thought that we were constantly reading of China quality issues because China is such a large producer. I thought that until I spoke at a China-focused product liability conference and had lunch with a super high level official with the United States Consumer Protection Agency who told me that year and year out, China’s product safety record is at least six times worse on a percentage per product basis than any other country in the world. “Pakistan,” I asked. “Yes,” he said? “Cambodia?” “Yes.” “Sri Lanka?” Yes. “Laos?” “Yes.” “How can that possibly be,” I asked. “I don’t know,” he said, “but it is.”

Two years ago, co-blogger Steve Dickinson wrote an article for the Wall Street Journal, entitled, “Food Fumble: China Can’t Regulate Away Its Safety Problems.” He received a lot of heat for that article from a number of people who insisted that China’s new regulations would solve its food safety problems and he just needed to give China the chance. China has had its chance and there is no good evidence that things are improving.

It’s bad out there.

What is it going to take for China to clean up its food act? People not eating?

An interesting thing is happening on the “border” between Hong Kong and China.

Nothing.

Let me explain.

Like virtually all countries, China has various limits and duties relating to what can be brought into the country. China is generally quite good at enforcing these limits and duties.

Except for quite some time now it has been looking the other way when it comes to food imports from Hong Kong. If you go to the border between Hong Kong and China, you will see what I mean. There you will see many, many people bringing back into China massive quantities of baby formula and the customs people are doing nothing. Nothing. The same is true for all sorts of other packaged foods being brought into China.

These people are making food runs (particularly for baby formula) because they simply do not trust China’s food supply. I can think of no other explanation. My theory is that China customs is looking the other way on this because those making the trip are not exactly the poorest of the poor and it would be politically unpalatable to crack down on this sort of thing. I can just see the quote: “All I was trying to do was feed my baby something without melamine in it.” You get the picture. And apparently so does Chinese customs.

Though I have not listed all of the posts we have done on China food safety, I have intentionally made the list long so as to emphasize the recurring and unrelenting nature of the problem.

Will things ever get better and, if so, when, and what will cause the change? Why is China so much worse on its food safety than other countries? Is it? What do you do to protect yourself from dangerous food in China?

All this activity looks good on paper, but it probably won’t work. Even if one accepts that China’s problem is a lack of centralized food regulation, there are few signs that any of these steps would address that shortcoming in practice. The law’s text provides absolutely no details about how it will be implemented. The law includes no standards, no timeline, no budget, no procedure for obtaining the input of regulated parties and no clear way to resolve disputes. In China today, laws adopted on controversial topics are often vague and leave all the details to later regulation. Often such regulations never appear, rendering the law essentially meaningless. The standards and procedures portion of the Food Safety Law will likely meet the same fate.

But the bigger problem with the new law is that a lack of regulation per se is not Beijing’s problem. Generally comprehensive regulations are already on the books. But as with most countries, China simply does not have the funding or expertise to hire enough qualified inspectors and regulators. China has more than 200 million farmers and more than 500,000 food production companies. The food production system is too vast to allow for meaningful inspection at all stages of the food production process.

Steve was of the view that China needs to allow injured parties to take effective action against negligent food companeis and to change the economic equation for farmers:

One of the most important reforms would be to allow the effective operation of the existing system of private civil litigation and bankruptcy that would allow injured parties to take action independent of the government. It is only when the citizen can use the court system to obtain damages that the food-safety system will ever affect the behavior food producers. As further support, the producer must know that the producer will be forced into bankruptcy if the frequency or extent of litigation is too great.

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A true solution to China’s food-safety problem also would recognize certain economic facts on the ground in the agricultural sector. Chinese farmers and herders are poor and uneducated. Most operate at a loss and only survive by supplementing their income through nonagricultural activities. The same is true of many primary food processors, who sell into a market where partially controlled prices rarely allow them to recoup their costs of production and who are frequently on the verge of going out of business. These people and businesses do not believe they have the luxury of being concerned with standards and rules and procedures. Experience has shown that some will violate the law if they believe this will give them some financial benefit. This is why even the death penalty has not been a sufficient deterrent.

I think it fair to say that Steve has been proven right in that China’s food safety is still poor.

Been looking for an excuse to mention what is shaping up to be an interesting new blog — China Bystander. The blog gives no indication of who is behind it, beyond describing it as “A curious glance from an old China hand as the country develops before our eyes.” The posts tend to be short and pithy, and quite original.

My excuse for mentioning it today is a very short post entitled, No Clean Hands. The entire post is the following:

Cans of hot dog chili sauce made by a U.S. food company, Castleberry’s Food, are suspected to be contaminated with the botulism bacteria. Here’s a report. No cleans hands, so to speak, anywhere, it seems.

As a worshipper of brevity (but admittedly, not one of its finest practitioners), I love it. This post does not in any way make light of China’s major problems with food safety, but it does put them in some perspective. The blog frequently deals at a high level with China economic issues that impact foreign companies doing business in China.

For those interested in learning more about this wholly domestic US food contamination and food poison cases in general, check out this post [link no longer exists] at the Food Poison blog (yes there is such a blog and it is a pretty good one at that), operated by the leading plaintiff’s food poisoning law firm in the country, Marler Clark, out of Seattle.

In partial response to those who have been e-mailing me asking when we are going to run our promised post on what foreign companies doing business in China should be doing to protect themselves from bad Chinese product, I give you a superb post from the ImageThief, entitled, China’s food crisis PR strategy: Blame everyone else.

In typical ImageThief fashion, the post thoroughly describes the current situation and explains from a PR perspective how China has been handling it and how China needs to handle it.

I can remember the first time I went to the Russian Far East around ten years ago. I landed in Vladivostok and was picked up at the airport by a driver who my law firm’s Russian specialist assured me would take good care of me. The driver came with his own bodyguard/friend, and the two of them were quick to show me they each had baseball bats — yes, real wood baseball bats. Do not ask me how they got them in Vladivostok or why they needed real baseball bats. It was only on my subsequent January trip to Vladivostok that I was arrested and then had to hole up in a hotel in Magadan with no heat. But I digress.

Anyway, on the trip from the airport to downtown Vlad, I was all eyes and what I noticed were countless abandoned factories, many of them with huge holding ponds filled with what were no doubt toxic chemicals. Near as I could tell, none of these holding ponds had anything even resembling an impermeable lining to prevent seepage of the chemicals into the surrounding soil. And what typically surrounded these ponds now? Tomato farms, which my drivers (in broken English and Russian) explained were “very good.” For two solid weeks, I ate pretty much nothing but sturgeon and potatoes. Nobody could understand why I was turning down the only thing offered (the tomatoes!) with any color.

Which gets me to the whole point of this post. Time Magazine just did a rather sobering story, entitled, China’s Taste for Toxins, regarding toxins in China food:

Chinese shoppers are used to warnings about tainted food. According to a November report by the Asian Development Bank, food-borne disease affects 300 million Chinese per year, costing up to $14 billion in lost productivity and medical expenses. But a recent string of high-profile health scares involving toxic ingredients has consumers worried about more than a stomachache.

In Hong Kong, imports of freshwater fish from the mainland were halted in November for 18 days after officials discovered MALACHITE GREEN , a banned fungicide possibly linked to cancer, in samples of fish from local markets.

On Feb. 5, the Chinese government released a list of 10 of last year’s most egregious food-safety cases — everything from selling homemade beer in brand-name bottles to making edible gelatin from OLD LEATHER. The top spot went to a firm in Jiangsu province busted for adulterating its nationally sold nutritional supplement, supposedly made from silkworm chrysalis. The real ingredients? Dried pig’s blood and chicken feathers.

On Feb. 6, Chinese health officials ordered six kinds of lipstick from two Shantou-based companies — including a strawberry-flavored variety — pulled from stores after they were found to contain SUDAN RED, an industrial dye known to cause cancer in lab animals. The dye, used to color petrol and floor polish, has also shown up in some Chinese chili powders and eggs.

Tests by environmental group Greenpeace recently detected residue from banned PESTICIDES such as DDT in 4 out of 5 mainland-grown tangerines, strawberries and green vegetables bought in Hong Kong produce markets. One tangerine tested positive for 13 different pesticides.

I remember being in Korea, a few years ago when Korea was talking about (or maybe did) enacting a temporary ban on Chinese seafood after the third incident of finding lead pellets in fish stomachs, intentionally put there to add weight.

Fibre2fashion just did an article on how British customs has detained children’s shoes made in Wenzhou City because the shoes were found to contain “carcinogenic substances like naphthalene.” The shoes will be sent back to Wenzhou (is anyone willing to bet they will not be re-sold?) or destroyed.

About China Law Blog

We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.